"Clean hands"/Ex turpi causa

[ottdiv]

Hi,
I am interested in understanding this forum's views on application of the doctrine "ex turpi causa".
Section 96 of the Courts of Justice Act mandates the application of the Rules of Equity. The operative word in s.96 is "shall administer".
Further, the Court of Appeal. the Divisional Court of Ontario and the Supreme Court have held that it is the "duty and obligation" of courts to apply the "clean hands"/ex turpi doctrine when it is found that a litigant approaches the court with, but does so with "unclean hands".
The Supreme Court in "Hall v Hebert" further clarifies that the application of ex turpi causa is justified to prevent a litigant from profiting from their own illegal/unlawful activity.
There are a number of references in CanLii where the courts, appeal courts and the Supreme Court voluntarily applies the ex turpi causa and ex dolo malo doctrine to prevent and deter litigants from benefiting from their own unlawful/illegal activity.


Appreciate your thoughts and inputs on this.


Thanks

[Janus]

That is an extremely general question. What are you trying to argue? Alternatively, how do you feel that these rulings apply to your situation?

[Kinso]

It only applies to equitable claims (ie. trust claims, occupational rent). Most claims in family law derive from statute, where the doctrine is inapplicable.

[ottdiv]

Thanks for the replies.
Irrespective of whether a litigant's claim is statutory or equitable, litigants have to "come to court" with clean hands. This is a prerequisite.


Litigants cannot commit illegal/unlawful acts and then approach the court for assistance.
This is my understanding and this is what the jurisprudence says.


A practical example - you cannot burn down your house to claim insurance - your cause of action is "ex turpi".


Appreciate your thoughts/input.

[Kinso]

Your understanding is incorrect (or at least grossly oversimplified). You can commit crimes/unlawful acts and still access the justice system. The doctrine of unclean hands does not act as a blanket denial.

For example, you can claim child support for your child, or spousal support for yourself, even if you're a drug dealer.

I reiterate my above comment, claims under statute or common law are not generally barred by a lack of clean hands. Claims in equity might be, but there must be a clear nexus between the wrongful act and the claim.

Btw the reason your cannot burn your house down to claim insurance is likely because it would be excluded by the insurance contract, not because of the equitable doctrine.

[ottdiv]

I would like to add/clarify - Litigants are allowed to make claims only if those claims do not have a causative link to an unlawful/illegal act.


Yes, there is no blanket denial, I agree - litigants cannot approach the court with claims that are directly connected to their unlawful/illegal actions. If there is a causative link between the claim and the unlawful act, the "clean hands" doctrine applies.


S.96 of the CJA also mandates the application of "Rules of Equity" and it is imperative on the courts to apply the same, whenever a litigant comes to court with "unclean hands" with claims linked to their unlawful actions.


Appreciate your input.

[Kinso]

S.96 of the CJA also mandates the application of "Rules of Equity" and it is imperative on the courts to apply the same, whenever a litigant comes to court with "unclean hands" with claims linked to their unlawful actions.

Yes, but the rules of equity do not apply to every claim. Claims under statute, common law, or contract are distinct from equity based claims.

This is a concept easier to illustrate with concrete examples than academic doctrine.

[ottdiv]

Thanks, Kinso. Appreciate your input.


May I ask/request the source of your statement that the Rules of Equity do not apply to statutory claims ? The CJA does not say so.



If there is statute or jurisprudence or case-law or other authority that states that "ex turpi" does not apply to claims based on statute, please forward/educate. I would like to better understand the issue.


Thanks

[Kinso]

May I ask/request the source of your statement that the Rules of Equity do not apply to statutory claims ? The CJA does not say so.

Law school?

I can tell you that the CJA (or any other statute) is not a comprehensive statement of the law as it exists. Our law has its origins in feudal England and has been evolving for hundreds of years. You cannot read any statute alone as the sole user's guide to the law.

(https://www.ontariocourts.ca/scj/about/history/ is helpful)

To understand equity you have to review its history and why it exists in the first place.

So.. (and all this comes from memory so small errors I hope are forgiven). Back in the day the King was the arbitrator of justice. However, the king is a busy man, so he delegated this work to people who would become judges. This evolved into the court of common pleas (or common law).. These courts had the authority to award monetary damages in exchange for a wrong. For example, if you stole your neighbor's sheep, the court could force you to pay for the conversion of property.

However, boiling everything down to monetary awards is not a sufficient remedy for some wrongs. Maybe you don't want to be compensated for the stolen sheep, you want the sheep back.

Given the limits in the common law, a bunch of Lords (who were unhappy with the limits of the common law) went to the King and demanded he intervene properly. Again being a busy man, he delegated to his Chancellor, which led to the creation of the Courts of Chancery. This is where people could seek certain remedies like specific performance, or injunctions.. (aka equitable claims).

Now, as the law evolved, it became expected that one would only seek relief in the equity courts where no sufficient remedy exists in the common law. Basically if monetary damages are sufficient to 'right the wrong', that's what you get.

The equity courts is where the doctrine of unclean hands comes from. "Those Who Seek Equity Must Do Equity" is the common maxim. As this concept only evolved in the equitable courts, it does not exists in the common law.

The common law courts and the equity courts existed side by side for hundreds of years. In Canada, they were merged into one court (now referred to as the Superior Court of Justice) in 1881 pursuant to the Ontario Judicature Act.

However, just because the courts were merged did not mean common law and equity became one undivided body of law. They are separate with distinct histories, and as such, distinct limitations.

Now, I've been talking about the doctrine of unclean hands (an equitable maxim).

ex turpi causa non oritur actio

is a separate concept. Ex turpi, also known as the illegality defense, means you cannot rely on your own wrong doing to ground a claim. (A good discussion cab be found here https://www.bennettjones.com/-/media...urpi-Causa.pdf)

Ex turpi is not an equitable doctrine (it seems to have its roots in the courts controlling its own process. https://www.canliiconnects.org/en/commentaries/71826)

Hall v. Hubert, 1993 CanLII is an important case on the ex turpi doctrine (https://www.canlii.org/en/ca/scc/doc...canlii141.html). Therein we find this quote:

Tort, unlike equity which requires that the plaintiff come with clean hands, does not require a plaintiff to have a certain moral character in order to bring an action before the court. The duty of care is owed to all persons who may reasonably be foreseen to be injured by the negligent conduct.

Unclean hands is an equitable doctrine, ex turpi isn't.

[rockscan]

Let me break in here to also add: if you are looking at something as minute as this clause to either justify filing an appeal (you had mentioned in earlier thread you were looking at appealing) or as an argument in that appeal, you may be shooting yourself in the foot.

It is a very bad move to try to argue elements of the law (or historical law) with a judge. You are not a lawyer and judges have devoted their career to it and were places on the bench (ostensibly) as a result of their work.


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[Kinso]

Let me break in here to also add: if you are looking at something as minute as this clause to either justify filing an appeal (you had mentioned in earlier thread you were looking at appealing) or as an argument in that appeal, you may be shooting yourself in the foot.

It is a very bad move to try to argue elements of the law (or historical law) with a judge. You are not a lawyer and judges have devoted their career to it and were places on the bench (ostensibly) as a result of their work.

100%. My discussion above is primarily academic. It will have very little application to family court in 2021.

[rockscan]

100%. My discussion above is primarily academic. It will have very little application to family court in 2021.

I am always amazed when you try to educate on these types of things.

[ottdiv]

Thanks for all your feedback. Kinso - I have been familiar with most of your last post - courts of chancery, Hall v Hebert etc.,



"You are not a lawyer" - yes I am not and I don't want to be one. I am much, much better than most lawyers. As well, one does not have to be a lawyer to make arguments on points of law.
Ex turpi causa is relevant in family law in 2021 and in the future as well. Not grounding one's cause of action on unlawful/illegal causes is trite law - as old as Hammurabi. 101, ABC of law.


Thanks

[Kinso]

I am much, much better than most lawyers.

I won't pretend one needs to be a lawyer to understand the law or or make intelligent legal submissions. But this is a pretty arrogant statement and I suggest you get beyond it. Pride goes before the fall. A great lawyer, even one better than most of their peers, would likely never say this. The necessity of humbleness is even more important when you do not have formal legal training. Hubris causes us to not challenge ourselves to a sufficient degree, leading to bad reasoning and flaws conclusions.

Ex turpi causa is relevant in family law in 2021 and in the future as well

How? The references I gave you make clear that in Canada "Ex turipi" is an extremely narrow defense. I am curious how you foresee it being applied to family law. Other than extreme causes of spousal murder (where yes, one might argue you don't get property division if you killed your spouse)... I'd have a hard time coming up with an example one could successfully apply.

[Janus]

I am much, much better than most lawyers.

Given that you are looking to appeal your ruling, I'm guessing that your current win rate is somewhere around 0%.

What makes you think that you are better than most lawyers? Not just some lawyers, but most lawyers... a bold statement.

As well, one does not have to be a lawyer to make arguments on points of law. Ex turpi causa is relevant in family law in 2021 and in the future as well. Not grounding one's cause of action on unlawful/illegal causes is trite law - as old as Hammurabi. 101, ABC of law.

I would put even money on you eventually being designated as a vexatious litigant.